Gerth v Holiday Mtn. Ski & Fun
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Gerth v Holiday Mtn. Ski & Fun 2021 NY Slip Op 32940(U) January 26, 2021 Supreme Court, Dutchess County Docket Number: IndexNo. 53690/18 Judge: Maria G. Rosa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] DUTCHESS COUNTY CLERK 01/27/2021 12:29 PM NYSCEF DOC. NO. 66 INDEX NO. 2018-53690 RECEIVED NYSCEF: 01/26/2021 .1 ( YORK NEW YORK STATE OF NEW SUPREME THE STATE COURT OF THE SUPREME COURT ESS COUNTY DUTCH COUNTY OF DUTCHESS Present: Present: Justice Hon. Maria Maria G. Rosa, Rosa, Justice GERTH, KEVIN KEVIN M. GERTH, Plaintiff, Plaintiff, ORDER DECISION AND ORDER DECISION AND -against-against- 53690/18 Index No. o. 53690/18 IndexN APPALACHIAN FUN and APPALACHIAN HOLIDAY MOUNTAIN SKI & FUN HOLIDAY MOUNTAIN unknown, whose name MOTO JAM JAM and "JOHN name is unknown, DOE", whose "JOHN DOE", MOTO MOUNTAIN HOLIDAY and HOLIDA said Y MOUNTAIN fictitious, and being fictitious, name being said name LLC, PRODUCTION, LLC, ACTION SPORTS, TOPS PRODUCTION, and TOPS LLC, and S, LLC, ACTION SPORT INC., . PARK, INC., FUN PARK, and HOLIDAY MOUNTAIN SKI & FUN HOLIDAY MOUNTAIN and Defendants. Defendants. judgment. motion for summar The followingg papers summaryy judgment. Defendants' motion read on Defendants' were read papers were The followin MOTION NOTICE NOTICE OF MOTION RT AFFIRMATION SUPPORT AFFIRMATION IN SUPPO RT SUPPO AFFIDAVIT AFFIDAVIT IN SUPPORT EXHIBITS EXHIBITS A - E RT MEMORANDUM SUPPORT LAW IN SUPPO MEMORANDUM OF LAW OPPOSITION AFFIRMATION AFFIRMATION IN OPPOSITION EXHIBITS EXHIBITS A - I REPL Y AFFIRMATION AFFIRMATION REPLY allegedly sustaine injuries allegedly damages for injuries This seeks damages sustainedd Plaintiff seeks which Plaintiff action in which negligence action is aa negligence This is Rock in Rock Park in Fun Park Ski & Mountain Ski Holiday Mountain the Holiday when assaultedd in the parking ofthe & Fun parking lot of physically assaulte was physically he was when he event An 2018. An event 21, 2018. October 21, hours of morning hours Hill, The incident occurred in the early morning of October the early incident occurred York. The New York. Hill, New the over the mounta ski the of portion a on entitled the the "Appalachian Moto Jam" portion of the mountainin over held being held was being Jam" was "Appalachian Moto entitled in night the spend the night in permitted to spend were permitted weekend spectators were and spectators Participants and 20-21, 2018. Participants October 20-21,2018. of October weekend of ered an he encount a.m. he :00 a.m. approximately 11:00 aa parking encountered an that at approximately alleges that Plaintif f alleges the site. Plaintiff on the lot on parking lot and face the in him punched him in the face and repeatedly punched then repeatedly intoxicated individualal who aggressive ve and then became aggressi who became intoxicated individu claims. all claims. dismissing all nt judgme y knocked him to the ground. Defendants move for summary judgment dismissing summar move knocked him to the ground. Defendants tendering of tendering burden of initial burden the initial carries the The summaryy judgment judgme nt carries motion for summar of a motion proponent of The proponent 1 of 4 [*FILED: 2] DUTCHESS COUNTY CLERK 01/27/2021 12:29 PM NYSCEF DOC. NO. 66 INDEX NO. 2018-53690 RECEIVED NYSCEF: 01/26/2021 sufficient admissible admissible evidence evidence to demonstrate demonstrate the absence absence of of a material material issue issue of of fact as a matter matter of of sufficient Alvarez v. Prospect Prospect Hospital, Hospital, 68 NY2d 320,324 (1986). (1986). If If a movant movant has has met met this this threshold threshold law. Alvarez NY2d 320,324 burden, defeat the motion opposing party existence of of a triable triable issue issue of of fact. burden, to defeat motion the opposing party must must present present the existence Zuckerman v. New York, 49 NY2d (1980). In deciding deciding a motion motion for summary summary See Zuckerman New York, NY2d 557, 562 (1980). judgment, "the trial court court must must afford afford the party opposing the motion motion every every inference inference which which may may be judgment, "the party opposing properly drawn from the facts presented, considered favorable favorable to the the properly drawn presented, and the facts must must be considered nonmovant." Szczerbiak Szczerbiak v. Pilat, Pilat, 90 NY2d (1997). nonmovant." NY2d 553 (1997). support of of the motion motion Defendants Defendants have have submitted submitted an affidavit affidavit of of Larry Larry Valentia, Valentia, the the In support general manager manager of of Holiday Holiday Mountain Mountain Fun Fun Park, Park, Inc., copies copies of of the the pleadings and Plaintiffs Plaintiffs general pleadings and deposition transcript. transcript. Plaintiff Plaintifftestified deposition that that he attended attended the the Appalachian Appalachian Moto Moto Jam Jam deposition testified at his deposition with a friend. He stated stated that that there there were were motocross motocross events events during during the day and and that that a party was held held with party was afterwards at a bar bar and restaurant restaurant on the premises. stated that that alcoholic alcoholic beverages were available available afterwards premises. He stated beverages were and that that he drank drank between 6:00 p.m. and his assault. He at the bar bar and between five and six beers beers between between 6:00 p.m. and his assault. testified that that after after the bar closed people continued to socialize socialize in the parking asserts that that at testified bar closed people continued parking lot. He asserts approximately 11:00 and his friend friend were intoxicated men approximately :00 a.m. he and were talking talking to three three intoxicated men who who became became aggressive. Plaintiff Plaintiff states states that away from the men aggressive. that he did not move move away men because because he did not not believe believe the situation would escalate. However, However, the men and his friend and and one hit situation would escalate. men began began bumping bumping into him him and his friend hit him him multiple incident, Plaintiff Plaintiff did not contact any authorities authorities or the police. multiple times times in the face. After After the incident, not contact police. Instead, he went went to sleep sleep in his van. He asserts asserts that that when when he woke woke up the the next next morning morning he realized realized Instead, extent of of his injuries injuries and sought sought medical medical help help at an EMS EMS station station located located on the the premises. the extent premises. General Manager Manager Valentia Valentia asserts asserts in his affidavit affidavit that that the Moto Moto Jam Jam event event encompassed encompassed a flat General track competition, competition, a hill climb climb competition, competition, a bike show, swap swap meet, meet, live music music and and other other events. events. track bike show, Valentia asserts asserts that that the event event has been held at Holiday Holiday Mountain Mountain three three times times per year since since 2005. 2005. Valentia been held per year Approximately 100 to 250 people attend each each event. event. Valentia Valentia states states that that participants and spectators spectators Approximately people attend participants and were permitted camp overnight overnight on the property if they they wanted wanted to stay stay for both of the two-day two-day were permitted to camp property if both days of event. He claims claims that that prior Plaintiffs assault, assault, there there had had never never been type of of criminal criminal assault, assault, been any type event. prior to Plaintiffs altercation or reports reports of of misbehavior misbehavior during during overnight overnight camping camping at Moto Moto Jam Jam events. events. He states states that that altercation on-site restaurant opened until approximately 11:00 closed because the on-site restaurant and bar bar remained remained opened until approximately :00 a.m. when when it closed because and there there were asserts that on-site EMT EMT who who stayed stayed it was raining raining and were no patrons. patrons. He asserts that there there was was an on-site overnight on the premises trailer on the property. Valentia states states there there was was no official official sponsored sponsored overnight premises in a trailer property. Valentia party that evening evening and that that the alleged alleged assault assault occurred occurred during during an informal informal party in the parking parking lot that gathering. He claims claims that that neither neither he nor nor any of ofthe other individuals individuals putting the event event had had ever ever gathering. the other putting on the complaints about about a dangerous dangerous condition condition or people acting improperly improperly during during the Moto Moto Jam Jam had any complaints people acting events. Based Based on the foregoing, foregoing, Defendants Defendants assert assert that that they they are entitled entitled to summary summary judgment events. judgment as a matter of of law law because they may may not be held held liable liable for the criminal criminal action action of of a third third party matter because they party in the absence of of any notice notice regarding regarding the likelihood likelihood of of an assault. assault. absence For a plaintiff common law-negligence law-negligence claim, claim, he or she must must first first establish establish For plaintiff to prevail prevail on a common duty owed owed by the defendant. defendant. D'Amico D'Amico v. Christie, Christie, 71 NY3d (1087). Landowners Landowners in a legal duty NY3d 76 (1087). general have a duty to act in a reasonable reasonable manner manner to prevent harm to those those on their their property. general prevent harm property. Id at This includes includes a duty to control control the conduct conduct of of third third persons their premises when they they have have 85. This persons on their premises when 2 2 of 4 [*FILED: 3] DUTCHESS COUNTY CLERK 01/27/2021 12:29 PM NYSCEF DOC. NO. 66 INDEX NO. 2018-53690 RECEIVED NYSCEF: 01/26/2021 opportunity to control persons and are reasonably reasonabl: aware aware of o!'the l)eecl for l<Jr such control. control. Id; !cl: the opportunity control such persons the l}eed Jayes v. Storms, AD3d 1090 (4thth Dept 2004). ··10 rt·covcr damages da1rn1ges from from an c111 owner mvner of of real Storms, 12 AD3d "To recover criminal acts on the premises, premises. a plaintiff pL1intill must must produce produce evidence evidence property for injuries injuries caused property caused by criminal indicating owner knew knew or should should have hme known kmrnn of of the th"· probabilityof probability or conduct conduct on 011 the part pan of of indicating that the owner persons which ,vhich was likely likely to endanger end:rngcr the safety sall'ty of of those tlwse lawfully Lrn fully on the premises." premises·· Calle Cal le,. third persons v. Elmhurst Woodside. 'vVooclside. LLC, LLC. 2020 2020 WE, WL 7761667 77Ci 1Cl(i7 (2" (2 c1d Dept 2020); 2U2U): Nallan i\allan,. I lclrnskv-Spea1·. Inc., Inc .. 50 Elmhurst v.Helmsley-Spear. NY2d 507, 5] . NY2d 507. 5199 ((1980). 1980). 11 To demonstrate their entitlement judgment :1s oJ' la,, Defendants Defendants are required required to demonstrate their entitlement to judgment as :1111:ttter a matter oflaw demonstrate material fact foct on the issue issllL' of of whether whether there thLTe was a likelihood likelihood of of conduct conduct demonstrate an absence absence of of material person to tu endanger Plaintiffss safety. sa!'c:ty. Sec \Lthcslrncll'i v. ,. City Cit, of or New York, York. on the part of of a third person endanger Plaintiff See Maheshwari \ssurning without withuut deciding ckciding that tlwt Defendant's DL'iencLll1t·s papers papt'rs have ha,t' made mc1dc this this 2 NY3d N'Y3d 288, 288. 294 (2004) (2004).. .Assuming of fact. L1ct. Defendants Defendants hosted hosted a motocross motocross event e,ent at al showing. Plainti1Tss submissions create an issue of showing, Plaintiff submissions create people were in attendance. attendance. Both riders and ,mcl spectators spectators were were permitted permitted to camp camp in which 100 to 250 people one of parking lots. After Alter the racing racing events C\Cnts ended ended for the day, clay. a bar bar served sen eel alcohol alcohol to patrons patrons of the parking I :00 a.m. The parties' parties· deposition deposition testimony li..'stirnony demonstrates demonstrates an awareness awareness that until approximately approximately 1:00 cong1cgatc and ,md consume co11su111e :1lcohnl p,irki11g lot after after the bar lx1r campers likely continue campers would likely continue to congregate alcohol in the parking closed. Deposition DqxJsition testimony testimony further J'urther establishes establishes that tk1t at c1t prior r1riur events L'\C11ts security SL'Curity was retained retained to monitor monitur Howe,cr. the unrefuted umeh1kd deposition ckpusitio11 testimony tcstirnon: is that th,tt there thc1·e was \\ilS no 110 formal security security in parking lot. However, the parking pnirnotcr of nf the tl1c event L'\ ent and c111,I owner n\\IlL'r of of Tops T\lps Production, P1·ucluctio11. LLC, Kenneth Kc1111eth place al at the subject subject event. The promoter Buongiorno, testified testi1icd that he h"' believed belic\ed the tht' owner U\\11t'r and ,rnd operator n1,c·1·~1tc\101· 1-lulid:ty Mountain \lou11tain Action \ction Spoils. Buongiorno, of Holiday Sports, ,,as resp\)JlSihlc !'nr 111u11ituri11g tht' p,1rki11g Into, crnight. Ho,,c,1.::1, Man·in LLC. James lvbrvin. LLC, Marvin, was responsible for monitoring the parking lot overnight. J-:lowever,Marvin Llrnt he had kid little, littk. if ii anything, ,111) thing. to do with \\itl1 the the· Moto Mot,l .Lun c,cnl. Marvin t\'L1ni11 testified at his dcpnsiliun deposition that Jam event. stated that he operated a lbt motorcru~s track 011 the premises pursuant to a lease with 1-lolicla) operated flat motorcross on premises pursuant lease Holiday Mountain Ski & Fun, Fun. and that he stayed overnight o,ernight in his camper camper solely sokly for the purpose purpnsc of of getting getting up Mountain early the next morning morning to groom his racing racing track. !11 adjuclicati11g motiun for summary summary judgment, judgment. this court court must draw draw aU all inferences inferences in favor favor In adjudicating a motion or non-moving party. party. Even applying applying such standard, st:111d:ml. the court court finds finds no no legal basis basis to hold of the non-moving tu support support the conclusion conclusion that Defendants Defendants Defendants liable. There nu testimony testimony or other other evidence evidence to Defendants There is no thi1·d party party in the knmvn that Plaintiff Plaintiff would be spontaneously spontaneously assaulted assaulted by a third knew or should have known parking \Vhcrcfore. it is parking lot after the event. event. Wherefore, ORDERED J)d'endants' motion motion for summary su1rn11m, .iudgrnent is granted. gramccl. ORDERED that Defendants' judgment IS dismissed. dismissed. order of or the Court. Court. constitutes the decision The foregoing foregoing constitutes clccisiun and order January :2.b ~ Dated: January ,,2021 2021. Poughkeepsie, New New York Poughkeepsie, ENTER: ENTER: ~ MARIA G. ROSA, ROSA, .l.S.C. .I.S.c. MARIA 3 3 of 4 The ;:iction action is IS [*FILED: 4] .. DUTCHESS COUNTY CLERK 01/27/2021 12:29 PM NYSCEF DOC. NO. 66 INDEX NO. 2018-53690 RECEIVED NYSCEF: 01/26/2021 Scanned to the the E-File E-File S~stem S~stem only only Scanned Pursuant to CPLR CPLR §5513, ~5513, an appeal appeal as of of right right must must be taken taken within within thirty thirty days days after after service service by a Pursuant party upon the the appellant appellant of of a copy copy of of the the judgment order appealed appealed from from and and written written notice notice of of its party upon judgment or order entry, except except that that when when the the appellant appellant has served served a copy copy of of the the judgment order and and written written notice notice entry, judgment or order of ' of its entry, entry, the appeal appeal must must be taken taken within within thirty thirty days days thereof. thereof. Mainetti & Mainetti, Mainetti, P.C. P.C. Mainetti Front Street" Street 130 N. Front Kingston, New York 12401 New York Kingston, Roemer Wallens Wallens Gold Gold & Mineaux, Mineaux, LLP Roemer Columbia Circle Circle 13 Columbia Albany, NY Albany, NY 12203 4 4 of 4
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